Identify legal and ethical requirements of property management to complete work. CPPDSM4007A Information Manual Queensland

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1 Identify legal and ethical requirements of property management to complete work CPPDSM4007A Information Manual Queensland

2 Contents Purpose of Property Management 3 Government Agencies 3 Legislation 3 Types of Tenancies 4 Principles of Property Management 4 Ethical & Conduct Standards 5 Communication 5 Listing 6 Authority Documents 7 Marketing 8 Leasing Process Dealing with Prospective Tenants 9 Managing Leasing Documents 12 Termination of Lease 13 Processes for Receiving, Recording and Releasing Security Bonds 15 Trust Monies 15 Recording Fees 16 Roles & Responsibilities 16 Commission & Management Fees 17 Resolving Disputes 18 Communication Strategies 18 Key Register 18 Security & Access of Keys 19 2

3 Purpose of Property Management Property management is best described as the care and maintenance of rented property that has been entrusted to a property manager as authorised by the property owner/s. Authority to act as a property manager must be in writing. Under Section 133 of the Property Agents and Motor Dealers Act 2000 an appointment to act as an agent is not valid unless it is written. The appointment must clearly set out the services that are to be rendered and where specific property is to be the subject of those services, clearly identify the property. Property or Asset management forms a major function in the viability of real estate practice. It offers the agency: 1. On-going revenue 2. A tangible asset 3. Ongoing business 4. Database Government Agencies The Office of Fair Trading (OFT) is the Government body responsible for monitoring the ethical behaviour and procedural requirements of licensees, sales consultants and property managers. OFT has the authority to prosecute licensees, sales consultants and property mangers who operate outside the boundaries and guidelines set in the Property Agents and Motor Dealers Act 2000 (PAMDA) and the Residential Tenancies and Rooming Accommodation Act Serious breaches of either of these Acts could result in loss of agency licence, a hefty fine or both. Legislation All real estate agency operations are governed by the PAMDA which controls the agency practice of those in the field. All practising and registered real estate agents including property managers must understand and abide by the Real Estate Agency Practice Code of Conduct Regulations 2001 which is of particular importance to the ethics and conduct of all real estate personnel. Property managers must become familiar with the Residential Tenancies and Rooming Accommodation Act 2008 which regulates the rights, obligations and relationship of owners and tenants under residential tenancy agreements. The residential property manager must comply with both the PAMDA and the Residential Tenancies and Rooming Accommodation Act at all times. If the agency portfolio (rent roll) includes the management of commercial property or retail tenancies, they must also be aware of the Commercial and Retail regulations and legislation which regulate these agreements. Commercial property management is a highly complex aspect of agency practice as there are many more Acts that have relevance. 3

4 Types of Tenancies There are two types of residential Tenancy which relate to approved occupancy. The types of tenancy relevant to property management are as follows: Fixed Term Tenancy A Fixed Term Tenancy is for a specific period of time with a commencement date and a termination. At the end of the fixed term the tenant may be offered another fixed term. However, should another fixed term not be offered, and the tenant remains in possession of the property with the owner s consent, then the tenancy rolls over into a periodic tenancy. With a fixed term tenancy, providing all conditions and obligations of the tenant have been met, the tenant is entitled to remain in the property for the full duration of the fixed term even if the property is sold during the period of the tenancy. Should an owner be considering not renewing the lease at the end of the fixed term you must ensure the correct period of notice has been served on the tenant. Should you wish for vacant possession on the last day of the lease you must give the tenant two months notice in writing. A serious breach by either party can enable the other party to terminate the tenancy prior to the expiry date by application to the Small Claims Tribunal. If no breaches have occurred, neither party can terminate a fixed term tenancy before the expiry date unless there is mutual agreement of the parties. Periodic Tenancy A periodic tenancy is for a non-specific period of time. It has a start date but the termination date is unknown at commencement. It is renewed at the end of each period by way of payment of the rent. This continues until such time that either the owner or the tenant gives notice of termination of the tenancy. Principles of Property Management Although the Office of Fair Trading and Residential Tenancies Authority are the two main governing bodies monitoring and policing the actions of licensees and property managers, there are various other Acts that impact on the functions of property management, being: Equal Opportunity Act Racial Discrimination Act Sexual Discrimination Act Police Act Privacy Act It is important to be aware that these Acts exist as there are ramifications for breaches of these Acts. The two Acts which impact most upon licensees and their staff are the Equal Opportunity Act and the Privacy Act. 4

5 One of the primary roles of the property manager is to assist owners and tenants in meeting their obligations and responsibilities throughout their contractual period. A competent property manager not only gains a strong understanding of their role, they continually increase their knowledge of insurance requirements, changes to legislation and industry trends to ensure all clients gain the highest level of service at all times. Ethical & Conduct Standards Equal Opportunity Act The property manager needs to be familiar with the Equal Opportunity Act to avoid any claims of discrimination. An applicant s private lifestyle and preferences are no grounds for discrimination. Owners and licensees and their staff may be prosecuted if they discriminate against prospective tenants. It is good advice to treat all applicants/prospective tenants equally and with due respect. Privacy Act With the Privacy Act presiding over almost every function of agency practice, and to avoid possible litigation and disciplinary action from the Privacy Commissioner, your agency must establish a policy for dealing with all other real estate agencies and owners of self-managed property when giving rental references for tenants. It is a requirement that the policy you adopt is always adhered to. Rights & Obligations Consumer Protection The Residential Tenancies and Rooming Accommodation Act 2008, along with the duly executed documentation of the General Tenancy Agreement and Management Authority covers all the ground rules for conduct and expectations during the term of tenancy and management. It is the statutory duty of all owners (and their property manager) to give all new tenants a copy of the Renting a Home In Queensland Guide (Form 17a) booklet at the time of signing the lease, which is a comprehensive guide detailing the rights and obligations of both parties for conduct and what information must be given to each party. Tenants must sign the relevant area of the lease in acknowledgement of receiving a copy of the Form 17a. Communication Communication with Owners Although owners entrust the care and management of their property to your agency, it is imperative to keep them informed every step of the way. The owner will receive monthly income and expenditure statements relevant to the financial aspect of managing their investment. The property manager also needs to keep owners fully informed as to the standard and condition in which the property is maintained, as well as any tenant performance issues. Inspections must be conducted and reports submitted to the owner according to the frequency agreed to on the management authority. 5

6 Sourcing a Tenant: Once your preliminary checking is completed you should contact the owner and outline your recommendation. Always gain their final approval before approving the prospective tenant. The approval should then be confirmed in writing, ensuring the owner is fully informed of all details. Communication with Clients: Owners and clients should be contacted on a regular basis to maintain an open working relationship, thereby avoiding communication breakdowns. Conflict Resolution: Before you contact the owner, ensure you have completed the following: Assessed the damage Calculated any loss of rent Prepared an action plan (repairs, insurance, etc.) Placed the tenant on defaulting tenant database (TICA, NTD) if required Prepared advertising for property website, press, vacancy list Prepared correspondence to the owner confirming the issue and action plan Communication with Tenants It is important to set the ground rules and explain clearly to the tenant what the rights and responsibilities are of the owner, tenant and property manger. At time of sign-up, the tenant should have been given a verbal explanation of each clause of the General Tenancy Agreement, and a copy of the document before they leave your office. A letter should be attached confirming receipt of their copy of the General Tenancy Agreement. All messages should be in accordance with the property manager s minimum performance standards and agency policy. Any requests to make alterations to the property or lease agreement should be requested in writing before any action is taken Written communication should always be acknowledged. On most occasions it is necessary to refer the item to the owner. Listing Listing Opportunities Property managers have two options in order to expand their business within the property management portfolio: Natural growth Purchase a rent roll 6

7 Prospecting is essential in property management to maintain a viable portfolio. Growth within the portfolio can be drawn from many areas. Your marketing and prospecting activities should include (but not be limited to): Advertising that you are seeking new management opportunities The sales department To Let by Private Owner Advertising Building developers Absentee owners The agency window Family and friends Sporting and social groups/clubs Authority Documents Property Appraisal Ensure the correct research is undertaken prior to the appraisal. Whilst conducting the appraisal, complete the Appraisal Form in full and never rely on your memory to complete the form at a later stage. Understand your market and always remain knowledgeable about current market trends and driving forces to assist in providing accurate rental appraisal Ask the owner to guide you through the property and point out any features. All details should be noted on the appraisal form. Key points when appraising property for rental: If the property is tenanted, have you made inspection arrangements with the current tenant? Physically inspect the property Complete the Appraisal of Rented Property form Research your portfolio, property portals and the newspapers for current comparable rental values Recommend any cleaning, repairs or maintenance necessary for leasing the property Ensure the property is adequately insured including a Landlord Protection Policy with Public Liability Completing the Appointment of Agent Letting & Property Management (Form 20a) It is a legal requirement for this document to be completed and signed in all the necessary sections. The Code of Conduct clearly states that you must have written authority from all registered owners of the property before you perform any task as the managing agent. It is the legally binding contract between the owner and the real estate agency, and establishes the ground rules for managing the property, as well as what is expected of the agent, what services are included and for what fee. 7

8 Key points when handling this document: The OFT Registration (Licence) number must be included in the Licensee Details. Should the owner or tenant be a company, ensure you include the Pty Ltd name (not just the Trading name) as well as their ABN and ACN. Make sure every section is initialled. All select options must be initialled. If an item is not applicable or included, do not leave it blank, always note the item with N/A and have it initialled. It is best to obtain a rent range in Section 4.3 of the management authority to allow for changes in the market place without the necessity of going back to re-sign the Authority. If you receive any incentive or inducement to refer business (i.e. insurance, maintenance, etc.) make sure you disclose this relationship to your Owner on the Authority. Getting All the Information You Need Once the Management Authority has been signed order a Title Search to ensure you are dealing with the right person and have authorisation from all owners of the property. It is a legal requirement to keep this information on the property file. Post a copy of the Authority to Act to the property owner/s together with a letter confirming they have received the copy File Layout & Information It is recommended that management files be maintained in alphabetical address order, generally in a coloured file (e.g. blue for owner and red for tenant) All documents must be maintained in chronological order and should be filed and bound daily. Marketing Once the Authority is signed, commence marketing the property. The areas to cover include newspaper advertising, placement on the website, vacancy list and letting handouts. You should also include in your campaign to let signs and the office window. Writing & Placing the Advertisement Advertising has a two fold effect; firstly generating enquiry for the vacant property and secondly to promote the agency to other prospective property owners. If you focus on the first objective of advertising, then you should aim to have your advertisements attract a high level of response. You should also be aware of the Competition and Consumer Act where you can be prosecuted for using false or misleading advertising. Advertisements need to clearly identify both the suburb and weekly rental price of the property, as well as agency details. When you place the advertisement, ensure you maintain proper records as you must be able to account to the owner on the text, date of placement and cost. 8

9 Letting Handouts The Letting Handout should include: A photo of the property s most attractive aspect (either internally, externally or views from the property) Weekly rental amount Full and descriptive detail of the property and surrounding neighbourhood Details of amenities to the area (schools, transport, shopping centres, etc.) Duration of availability long or short term lease available Website All vacant and vacating property should be listed on the internet, together with a photograph of the property. Some general information to follow: Availability and date Advertising Teaser Advertising Body Keeping a Record of Vacant Property Activity It is important to record factual information on market response and enquiry activity for all vacancies within your portfolio. This will aid in your communication with your owners as well as keep you updated with market activity. Leasing Process Dealing with Prospective Tenants Determining the Rent Before you embark on finding a suitable tenant, you should have come to an agreement with the property owner as to the market rent. When determining rent, first ensure you are comparing similar recently rented properties. Consider: Quality & presentation Location Seasonal or climatic factors Supply & demand Rent can be increased during the term of a fixed tenancy if a special clause is agreed to and included in the General Tenancy Agreement. Periodic Tenancy: Two months notice must be given in writing 9

10 Fixed Term Tenancy: Increase can only be enforced where there is a specific rent increase clause written into the agreement, specifying the date on which the increase takes effect, by how much it is going to be increased and what the new rental amount payable will be. Rent can be increased at the end of the fixed term period by giving the tenant two months notice in writing prior to the expiry of the General Tenancy Agreement. It is recommended that the bond is increased in line with the rental increase at this time also. Bond can only be increased once in a 12 month period. Handling the Enquiry from Prospective Tenants When an enquiry is first made from a prospective tenant and their requirements have been assessed, it is recommended the prospect be given the address of suitable property/s open times and application form. It is not acceptable to hand over keys once a deposit has been paid. Unaccompanied access is a highly dangerous practice and the agency could liable should the prospect cause damage or just move in without permission. The application must be completed by the applicant and not the property manager, as the information it contains may be used as evidence in Court if necessary. Processing Tenancy Applications It is the responsibility of the property manager to source and secure a suitable tenant. Once completed, the application provides the necessary information for the property manager to assess the suitability of an applicant. A licensee (and their property manager) has a duty to the owner to carefully and thoroughly scrutinize the applications. If the necessary checks are not made and details not recorded and the owner suffers loss or damage as a result, the licensee could be found liable for damages due to negligence. Ensure you refer to the Management Authority form to ensure the application meets with the owners needs (duration of tenancy, commencement date, rent amount, etc). It is recommended that the applicant must have physically inspected the property prior to applying for the property. In some instances the applicant may not be available to attend the property and they send someone to act on their behalf. If this is the case, make sure the applicant has confirmed the arrangement in writing including the name of the person acting on their behalf. Process the application and contact the previous owner/property manager, employer, next of kin, business and personal referees. With the Privacy Act in place, it is important that information noted by you on the application is brief and concise. Bear in mind that it is an applicant s right to view what you wrote on their application at a later date. Advising Successful Applicant/s Successful applicants should be notified as soon as possible Once accepted you must prepare applicable documentation and arrange for the approved applicants to return to your agency as soon as possible to execute the documents and payment of any monies applicable; usually the first two weeks rent and bond. The approved applicants must read through the General Tenancy Agreement and special conditions for formal acceptance prior to signature. 10

11 Advising Unsuccessful Applicant/s Unsuccessful applicants should be notified within 24 hours. You are not required to validate reasons for rejecting the application Processing the Lease Once you have approved the new tenant, there are a number of functions that must be completed: Complete the Entry Condition Report Prepare the General Tenancy Agreement Receipt and lodge the bond Hand the Tenant a copy of Form 17a and any other relevant documentation Advise the owner Completing the Entry Condition Report The Entry Condition Report should be an accurate and detailed record of the standard and condition of the property as at commencement of the lease. It is imperative that the information included is sufficient to give a clear description of the property and its content, as well as be detailed enough to protect the owner s interest if needed as evidence in the Small Claims Tribunal. Preparing the General Tenancy Agreement This is the legally binding contract between tenant and owner (or agency on behalf of the owner). It is imperative that this document is executed correctly to make it legally enforceable. Explain the terms and conditions of the document with all your new tenants. As part of the sign-up procedure, the Residential Tenancies and Rooming Accommodation Act 2008 requires you to ensure you give the tenant a copy of the Form 17a together with the General Tenancy Agreement. Failure to do so may leave the contract null and void. Key points when handling this document: Pet information (breed, age, etc) must be clearly identified. Any Special Condition Clauses attached to the lease to the approved tenant at time of formal acceptance and signing. The Form 17a must be handed to all new tenants at time of signing the lease. Lodgement of the Bond Bond should be charged in the equivalent of four times the weekly rent for rental amounts under seven hundred dollars per week. If the rent is over seven hundred dollars a week the bond amount can be negotiated. If a bond is receipted the agent must lodge the bond with the Residential Tenancies Authority within ten days. Failure to lodge within the required time frame could result in the agent being fined. 11

12 It is recommended that bonds are held for each and every management as this protects the owner should damage or non payment of rent result from the tenant and it is usually a requirement of the owners insurance policies. What Documents to Give to the Tenant On entering the lease agreement, the tenant/s must be given: A copy of the General Tenancy Agreement Form 17a (Renting a Home a tenant s guide to the rules for renting in Queensland) The Entry Condition Report Copy of the Lodgement of Bond form (if applicable) Keys to the Property (or at time of lease commencement) Welcome to Your New Home Tenant Letter located at the rear of this section (optional, but recommended) How to Effectively Report Maintenance & Repairs procedure (optional, but recommended) Emergency contact details for Agency or your Business Card (optional, but recommended) Advising the Owner As soon as the applicant has signed the General Tenancy Agreement and paid their money forward a copy of the lease together with a letter of confirmation to the owner Managing Leasing Documents Throughout this module, we have identified the key agency leasing documents that you must use in managing residential property. Those being: Appointment of Agent Letting & Property Management (Form 20a) Standard Application General Tenancy Agreement (Form 18a) Entry Condition Report (Form 1a) Renting a Home a tenant s guide to the rules for renting in Queensland (Form 17a) Bond Lodgement (Form 2) Refund of Rental Bond (Form 4) These documents will need to be maintained by the property manager, even after the tenancy or management has terminated. The Office of Fair Trading requires a licensee to maintain these documents (along with Trust Accounting details) for not less than 5 years after the transaction. The Residential Tenancies Authority requires all tenancy information to be retained for a period of 12 months. For any service that you have delivered and then charged a fee, you must also keep a documented record of that, for example routine inspections and the Entry Condition Report. 12

13 Termination of Lease There are some general rules as set by the Residential Tenancies and Rooming Accommodation Act 2008 with regards to issuing notice to tenants to vacate. The periods of notice to be issued are defined here, but selecting the most appropriate action will be detailed below. All notices must be issued in writing. Period of Notice: In a periodic tenancy when the property has sold 4 weeks notice is required In a periodic tenancy without specifying the grounds 2 months notice is required For breach of agreement 14 days notice to non remedy of general breach or 7 days notice for non remedy of breach of rental arrears Choosing the Appropriate Action Advising the tenants at the commencement of tenancy as to what is acceptable in terms of conduct, upkeep and maintaining property usually prevents the majority of possible situations from occurring. A Breach of tenancy occurs when the tenant does not honour the terms and conditions of their lease agreement. This may be in the form of: Failure to pay rent Damage to the premises Premises kept in an unsanitary state Sub-letting or persons residing without permission Keeping a pet without permission Causing a nuisance Failing to maintain the premises or grounds Failing to pay water consumption or other accounts Illegal use of the premises Whenever you have reason to contact the tenant it is recommended you write to them confirming the matter and your discussion, and that the matter is to be remedied within a certain time frame (e.g. seven days). Always issue the relevant legislative breach document where necessary. Should all attempts to resolve the issue remain unsuccessful you will then need to issue the tenant a Notice to Leave (Form12). Issuing the Breach When a tenant is in breach of their lease agreement a Notice to Remedy Breach (Form 11) must be issued allowing the tenants 7 days to remedy the breach. A Notice to Leave (Forma 12) is a prescribed form and must be presented in the format set down by the Residential Tenancies Authority. It is not acceptable to write the matter down in any other format. The notice gives the tenant either 7 or 14 days depending on the reason for the breach to vacate the property. 13

14 You are required always to specify why the breach was issued. Be precise if referring to items contained in the lease document itself The Notice of Breach must always be signed by the property manager and dated, with the original being sent by postal service or if necessary hand delivered to the tenants. Follow-up with Your Tenant Diarise to follow-up the matter within the appropriate time period always ensuring you have made an allowance made for postal service. This should equate to an extra two days. When & How to Terminate Before you complete the Notice to Leave it is recommended that you re-check your calculation of dates on the Notice of Breach to ensure you have given sufficient clear days. If you underestimate your days (even by 1) you will jeopardise the entire process. The Final Bond Inspection Once possession has been given back to the agency, refer to the original Entry Condition Report from commencement of the tenancy so you have an accurate guide of assessment for the Vacate Inspection. The tenant is required to complete an Exit Condition Report (Form 14a) and provide their new address to the agency. Refer to both the Entry and Exit Condition Report by taking them to the property and thoroughly inspecting the property comparing the condition to that noted on the original ECR. Note any items that require rectifying. The tenant must remove all their belongings at the end of their tenancy. The Vacate Inspection Action List should be retained with the outgoing or vacating tenants details for future reference if necessary. Once the vacate inspection has been conducted and all accounts relevant to the matter are handled, you will need to account to the tenant. Ending Fixed Term Tenancies In the case of a fixed term tenancy, the lease ends of the last day of the contract. However, should you wish for vacant possession on that day you must give the tenant two months notice in writing. A Notice to Leave (Form 12) must be issued to the tenant providing full details of the vacate procedure. When the Tenant Terminates Their Lease In order to ensure the owner is adequately compensated for rent, lease renewal fee, advertising, final bond inspection and any other cost associated with the upkeep of the property until it is re-let, the terminating tenant must complete the Agreement to Terminate Fixed Term Tenancy which is your authority to act on the tenant s behalf, at the time they advise you of their intention to break their lease agreement and appoint the agency to secure another suitable tenant. 14

15 Processes for Receiving, Recording and Releasing Security Bonds Bond When receiving a Bond from your new tenant, a Trust Receipt must be issued, and the bond monies must be lodged using the prescribed RTA Form 2 Bond Lodgement as required under the Residential Tenancies and Rooming Accommodation Act. The Residential Tenancies and Rooming Accommodation Act states that the bond: is equivalent of four weeks rent unless the rent is over $700 per week. Property managers are required to lodge the bond together with the completed Bond Lodgement form (Form 2) with the Residential Tenancies Authority within 10 days. At the conclusion of the tenancy, the vacating tenant will be forwarded a Bond Statement, detailing the amount of Bond held and any disbursements that are to be claimed from the Bond, as well as a Refund of Rental Bond form (Form 4) for the tenant/s to sign. This form is prescribed under the Residential Tenancies and Rooming Accommodation Act and must contain the original signature of all stakeholders of the Bond. Should any dispute arise over the disbursement or claim of all or part of the Bond, then application must be made by way of a Dispute Resolution Request (Form 16) to the Residential Tenancies Authority for dispute resolution The only time a Bond can be disbursed/accessed without all original signatures is when there is a Court Order authorizing the disbursement of the money. If this is the case, the original Court Order must be kept with the file records. Trust Monies Processes for Trust Monies All receipted trust money must be deposited to the Trust Account as soon as practicable. The receipt for payment of all trust money, including bonds, rent, advertising, etc must contain all the relevant details of any trust receipt, identifying: The receipt must be headed with the wording Property Agents and Motor Dealers Act 2000 Trust Account Receipt; The name of the licensee; The date of receipt; The name of the person on whose behalf the receipt was completed; The name of the person on whose behalf the money was received; A brief description of the purpose of the payment; Amount received in numerical figures; Manner in which the money was received cash, cheque, electronic funds transfer, etc; If the receipt is hand-written, the name of the person receiving the money evidenced by the signature of that person. 15

16 Where the receipt is for the payment of rent, the receipt must also include: The period of the tenancy in respect of which it is paid; and The premises in respect of which the rent is paid. Property Managers should finalise their banking on a daily basis, ensuring that the recorded amount is identical to the deposited amount. The date of the bank deposit record must reflect the same date as the deposit is made. During the end of month procedures, the net balance of money held in trust for owners is dispersed usually directly into their nominated bank account and a detailed statement of receipts and payments generated and issued. This process is normally recorded through the Property Management Trust Account software. Recording Fees Recording Fees Separate ledgers should be set up in your software to record chargeable items; e.g. letting fees ledger, inspections ledger, management fees, etc. This should be checked against your activity report to ensure all relevant charges have been transferred. Roles & Responsibilities The property manager has a diverse role, and essentially is the conduit between owner and tenant in residential tenancy matters. They need to be multi-skilled in the areas of communication, negotiation, administration, as well as time management and self-discipline. The key responsibilities of the property manager are to: Maximise the income Maintain the condition of the property Ensure capital growth Property management is a regulated industry; there are rules and regulations that are governed by various acts of parliament which are overseen by the Office of Fair Trading and Residential Tenancies Authority. The Acts that apply to the functions of the Property Manager are: The Property Agents and Motor Dealers Act 2000 The Residential Tenancies and Rooming Accommodation Act 2008 The tasks and responsibilities required to fulfil your duty of care as a property manager are: Conduct rental appraisals Receive and act upon the owner s instructions Arrange advertising Prepare documentation on behalf of the owner Select tenants 16

17 Maintain and receipt rental payments Process and receipt bonds Pay accounts on behalf of the owner Prepare Monthly Statements Transfer and deposit funds due to the owners Attending to repairs & maintenance, including quotes Preparing and checking inventories Conducting property inspections Some agencies also offer Commercial and Industrial Property Management services, which vastly differ from Residential. The main difference being that each function is regulated by different Acts. The Residential Tenancies and Rooming Accommodation Act regulates the activities of residential tenancies, whereas the Commercial Tenancies (Retail Shops) Act and the Property Law Act apply to Commercial tenancies. The properties are put to different uses. In residential the occupancy is of a domestic nature only, however commercial is for an income producing capacity. Term of lease will also differ. Most residential tenancies will sign a 6 or 12 month lease, with the average period of occupancy being 24 months. Commercial tenancies are usually for a 3-5 year term, with several options for renewal at the expiration of each term. Complexity of Agreement a General Tenancy Agreement is relatively basic in its structure and is simple to complete and understand. A Commercial property lease is generally drawn up by a solicitor, with much of the content highly complex. The Schedule being the most important aspect of the lease in both scenarios as it customizes the terms and conditions of each particular tenancy. Rental Payment most residential tenancies pay their rent either weekly, fortnightly or monthly. In commercial tenancies it is generally paid on a calendar monthly basis. Rental Structure residential rent is all inclusive, with the owner responsible for maintaining the property and payment of rates, taxes and insurance. Commercial tenancies are based on 2 aspects of rent, being Base Rent (based on occupancy of square metres) and Variable Rent or Variable Outgoings, for which the tenant pays for all the running costs of the premises including (but not limited to) rates, taxes, maintenance, insurance, security, repairs, property management fees, legal fees, etc. Occupation Residential tenancies are occupied on a continual basis. Commercial tenancies are generally only occupied during business hours. In most cases this is somewhere between 7.00am and 6.00pm. Assignment Residential lease agreements cannot be assigned or transferred to another party. Should the tenant wish to vacate before the end of their lease then they need to contact their property manager and follow the necessary procedure. Commercial lease agreements can be assigned with the owner s consent. An Assignment of Lease is then drawn up by a solicitor, the cost of which the tenant bears. Commission & Management Fees The Office of Fair Trading regulates the maximum fee an agency can charge for its services based on various components. With this in mind each agency determines its own fees for service and all fees are negotiated with each owner at the time of signing their management authority. 17

18 Essentially the property management commission or fee is comprised of two fee structures: Management fees which are calculated on gross collections from the tenant and cover the basic functions of the property manager as generally outlined in Routine Duties. Ancillary fees which cover all additional tasks; e.g. letting fees, inspections, property condition reports, attending court, etc. Resolving Disputes In resolving disputes it is important to record all comments and conversations, have clear agency policies and procedures, and adhere to legislative requirements. It is a legislative requirement that every agency must have a written complaints procedure in place to resolve disputes and conflict promptly and effectively. Communication Strategies Troubleshooting There are some simple steps you can follow in your communication skills which when followed will eliminate many problems that may arise: 1. Be clear and concise in all correspondence 2. Be specific about the issue involved 3. Give details only that are relevant to the current situation 4. Create closure on the matter for both owner and tenant 5. Be guided by legislative requirements Any recommendation you may make for resolution should be in writing, should specify the issue, how it should be resolved and within what time frame. Effective Communication Results are almost always more effective if communication is assertive, friendly and clearly: Identifies the problem Gives a solution or course of action Is clear, concise and unambiguous Key Register The property manager on behalf of the licensee must maintain control of keys for both vacant and tenanted properties. To comply with Professional Indemnity standards all keys for rental properties must be recorded in a register, tagged & coded with no reference to address on the tag and keys must be maintained away from public access and view. The key register should be kept away from the key board when the office is closed. 18

19 Any removal of keys from the office must be accurately recorded, noting time and date of removal, who has taken them and when they have been returned. The key register is usually listed in two aspects. Firstly, the key will be allocated a number. This is noted at the front of the key register. Then, the book is noted or separated alphabetically A Z where the full address is written in and cross referenced with the key number down the left hand column of the page. Security & Access of Keys Vacant Property: Unaccompanied access through the use of the office keys should never be given to prospective tenants. This will jeopardise your entitlement to a Letting Fee and leaves the Licensee open to enormous risk of a Professional Indemnity Claim. Tenanted Property: There are times when access is needed to be gained whilst property is tenanted. This could be by staff for inspections, by trades to carry out necessary repairs or even by the tenant when they have misplaced their keys. When staff have removed keys or handed to trades people this should be recorded in a register. The register should note date, time, tradesperson, property, purpose of use, signature of tradesperson, date returned and signature on return. When Keys Go Missing The first step is to establish where the keys went missing from. In the case of the Tenant misplacing the keys, it would be their responsibility to pay for the barrel of the locks to be changed and new keys provided to both Tenant and Property Manager. If however the Tenant s keys were stolen (with a police report number to substantiate this), this may be covered under the Owner s insurance policy. If the management keys go missing, again, the barrel of the locks should be changed. Before you go to the expense and disruption of changing the barrels you should refer to the Key Register to see who had them last. It is good practice to conduct an audit of keys each week to ensure all keys are accounted for. This is done by referring to the Key Register and ensuring all keys in the book are on their allocated hook. Immediate follow-up should be made to locate any keys missing. Any keys for property no longer managed must be returned to the Owner or new Property Manager. To view any of the legislation mentioned in this manual please go to: 19

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